CRS Annotated Constitution

Durational Residency Requirements.—A durational residency requirement creates two classes of persons: those who have been within the State for the prescribed period and those who have not been.1 But persons who have moved recently, at least from[p.1912]State to State,2 have exercised a right protected by the Constitution of the United States, and the durational residency classification either deters the exercise of the right or penalizes those who have exercised the right.3 Any such classification is invalid “unless shown to be necessary to promote a compelling governmental interest.”4 The constitutional right to travel has long been recognized,5 but it is only relatively recently that the strict standard of equal protection review has been applied to nullify those durational residency provisions which have been brought before the Court.

Thus, in Shapiro v. Thompson,6 durational residency requirements conditioning eligibility for welfare assistance on one year’s residence in the State7 were voided. If the purpose of the requirements was to inhibit migration by needy persons into the State or to bar the entry of those who came from low–paying States to higher– paying ones in order to collect greater benefits, the Court said, the purpose was impermissible.8 If on the other hand the purpose was to serve certain administrative and related governmental objectives—the facilitation of the planning of budgets, the provision of an objective test of residency, minimization of opportunity for fraud, and encouragement of early entry of new residents into the labor force—the requirements were rationally related to the pur[p.1913]pose but they were not compelling enough to justify a classification which infringed on a fundamental interest.9 Similarly, in Dunn v. Blumstein,10 where the durational residency requirements denied the franchise to newcomers, the assertion of such administrative justifications was constitutionally insufficient to justify the classification.

The Privileges or Immunities Clause of the Fourteenth Amendment was the basis for striking down a California law which limited welfare benefits for California citizens who had resided in the State for less than a year to the level of benefits which they would have received in the State of their prior residence.46

However, a state one–year durational residency requirement for the initiation of a divorce proceeding was sustained in Sosna v. Iowa.11 While it is not clear what the precise basis of the ruling is, it appears that the Court found that the State’s interest in requiring that those who seek a divorce from its courts be genuinely attached to the State and its desire to insulate divorce decrees from the likelihood of collateral attack justified the requirement.12 Similarly, durational residency requirements for lower in–state tuition at public colleges have been held constitutionally justifiable, again, however, without a clear statement of reason.13

Supplement: [P. 1913, add to text following n.13:]

More recently, the Court has attempted to clarify these cases by distinguishing situations where a state citizen is likely to “consume” benefits within a State’s borders (such as the provision or welfare) from those where citizens of other States are likely to establish residency just long enough to acquire some portable benefit, and then return to their original domicile to enjoy them (such as obtaining a divorce decree or paying in–state tuition rate for a college education).47

A state scheme for returning to its residents a portion of the income earned from the vast oil deposits discovered within Alaska foundered upon the formula for allocating the dividends; that is, each adult resident received one unit of return for each year of residency subsequent to 1959, the first year of Alaska’s statehood. The law thus created fixed, permanent distinctions between an ever–in[p.1914]creasing number of classes of bona fide residents based on how long they had been in the State. The differences between the durational residency cases previously decided did not alter the bearing of the right to travel principle upon the distribution scheme, but the Court’s decision went off on the absence of any permissible purpose underlying the apportionment classification and it thus failed even the rational basis test.14

Unresolved still are issues such as durational residency requirements for occupational licenses and other purposes.15 Too, it should be noted that this line of cases does not apply to state residency requirements themselves, as distinguished from durational provisions,16 and the cases do not inhibit the States when, having reasons for doing so, they bar travel by certain persons.17

In Zablocki v. Redhail,18 importing into equal protection analysis the doctrines developed in substantive due process, the Court identified the right to marry as a “fundamental interest” that necessitates “critical examination” of governmental restrictions which “interfere directly and substantially” with the right.19 Struck down was a statute that prohibited any resident under an obligation to support minor children from marrying without a court order; such order could only be obtained upon a showing that the support obligation had been and was being complied with and that the children were not and were not likely to become public charges. The plaintiff was an indigent wishing to marry but prevented from doing so because he was not complying with a court order to pay support to an illegitimate child he had fathered, and because the child was re[p.1915]ceiving public assistance. Applying “critical examination,” the Court observed that the statutory prohibition could not be sustained unless it was justified by sufficiently important state interests and was closely tailored to effectuate only those interests.20 Two interests were offered that the Court was willing to accept as legitimate and substantial: requiring permission under the circumstances furnished an opportunity to counsel applicants on the necessity of fulfilling support obligations, and the process protected the welfare of children who needed support, either by providing an incentive to make support payments or by preventing applicants from incurring new obligations through marriage. The first interest was not served, the Court found, there being no provision for counseling and no authorization of permission to marry once counseling had taken place. The second interest was found not to be effectuated by the means. Alternative devices to collect support existed, the process simply prevented marriage without delivering any money to the children, and it singled out obligations incurred through marriage without reaching any other obligations.

Other restrictions that relate to the incidents of or prerequisites for marriage were carefully distinguished by the Court as neither entitled to rigorous scrutiny nor put in jeopardy by the decision.21 For example, in Califano v. Jobst,22 a unanimous Court sustained a Social Security provision that revoked disabled dependents’ benefits of any person who married, except when the person married someone who was also entitled to receive disabled dependents’ benefits. Plaintiff, a recipient of such benefits, married someone who was also disabled but not qualified for the benefits, and his benefits were terminated. He sued, alleging that distinguishing between classes of persons who married eligible persons and who married ineligible persons infringed upon his right to marry. The Court rejected the argument, finding that benefit entitlement was not based upon need but rather upon actual dependency upon the insured wage earner; marriage, Congress could have assumed, generally terminates the dependency upon a parent–wage earner. Therefore, it was permissible as an administrative convenience to make marriage the terminating point but to make an exception[p.1916]when both marriage partners were receiving benefits, as a means of lessening hardship and recognizing that dependency was likely to continue. The marriage rule was therefore not to be strictly scrutinized or invalidated “simply because some persons who might otherwise have married were deterred by the rule or because some who did marry were burdened thereby.”23

It seems obvious, therefore, that the determination of marriage and familial relationships as fundamental will be a fruitful beginning of litigation in the equal protection area.24

Supplement: [P.
1916, add new heading and text following n.24:]

In Romer v. Evans,48 the Supreme Court struck down a state constitutional amendment which both overturned local ordinances prohibiting discrimination against homosexuals, lesbians or bisexuals, and prohibited any state or local governmental action to either remedy discrimination or to grant preferences based on sexual orientation. The Court declined to follow the lead of the Supreme Court of Colorado, which had held that the amendment infringed on gays’ and lesbians’ fundamental right to participate in the political process.49 The Court also rejected the application of the heightened standard reserved for suspect classes, and sought only to determine whether the legislative classification had a rational relation to a legitimate end.

The Court found that the amendment failed even this restrained review. Animus against a class of persons was not considered by the Court as a legitimate goal of government: “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” 50 The Court then rejected arguments that the amendment protected the freedom of association rights of landlords and employers, or that it would conserve resources in fighting discrimination against other groups. The Court found that the scope of the law was unnecessarily broad to achieve these stated purposes, and that no other legitimate rationale existed for such a restriction.

Generally.—Whatever may be the status of wealth distinctions per se as a suspect classification,25 there is no doubt that when the classification affects some area characterized as or considered to be fundamental in nature in the structure of our polity—the ability of criminal defendants to obtain fair treatment throughout the system, the right to vote, to name two examples—then the classifying body bears a substantial burden in justifying what it has done. The cases begin with Griffin v. Illinois,26 surely one of the most seminal cases in modern constitutional law. There, the State conditioned full direct appellate review, review as to which all convicted defendants were entitled, on the furnishing of a bill of exceptions or report of the trial proceedings, in the preparation of which the stenographic transcript of the trial was usually essential. Only indigent defendants sentenced to death were furnished free transcripts; all other convicted defendants had to pay a fee to obtain them. “In criminal trials,” Justice Black wrote in the plurality opinion, “a State can no more discriminate on account of pov[p.1917]erty than on account of religion, race, or color.” While the State was not obligated to provide an appeal at all, when it does so it may not structure its system “in a way that discriminates against some convicted defendants on account of their poverty.” The system’s fault was that it treated defendants with money differently than it treated defendants without money. “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”27

The principle of Griffin was extended in Douglas v. California,28 in which the court held to be a denial of due process and equal protection a system whereby in the first appeal as of right from a conviction counsel was appointed to represent indigents only if the appellate court first examined the record and determined that counsel would be of advantage to the appellant. “There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.”29

From the beginning, Justice Harlan opposed reliance on the equal protection clause at all, arguing that a due process analysis was the proper criterion to follow. “It is said that a State cannot discriminate between the ‘rich’ and the ‘poor’ in its system of criminal appeals. That statement of course commands support, but it hardly sheds light on the true character of the problem confronting us here. . . . All that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action.” A fee system neutral on its face was not a classification forbidden by the equal protection clause.[p.1918]“[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against ‘indigents’ by name would be unconstitutional.”30 As he protested in Douglas: “The States, of course, are prohibited by the Equal Protection Clause from discriminating between ‘rich’ and ‘poor’ as such in the formulation and application of their laws. But it is a far different thing to suggest that this provision prevents the State from adopting a law of general applicability that may affect the poor more harshly than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely.”31

Due process furnished the standard, Justice Harlan felt, for determining whether fundamental fairness had been denied. Where an appeal was barred altogether by the imposition of a fee, the line might have been crossed to unfairness, but on the whole he did not see that a system which merely recognized differences between and among economic classes, which as in Douglas made an effort to ameliorate the fact of the differences by providing appellate scrutiny of cases of right, was a system which denied due process.32

The Court has reiterated that both due process and equal protection concerns are implicated by restrictions on indigents’ exercise of the right of appeal. “In cases like Griffin and Douglas, due process concerns were involved because the States involved had set up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. Equal protection concerns were involved because the State treated a class of defendants—indigent ones—differently for purposes of offering them a meaningful appeal.”33

Criminal Procedure.—“[I]t is now fundamental that, once established . . . avenues [of appellate review] must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.”34 “In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds. . . .”35 No State may condition the right to appeal36 or the right to file a petition for habeas cor[p.1919]pus37 or other form of postconviction relief upon the payment of a docketing fee or some other type of fee when the petitioner has no means to pay. Similarly, although the States are not required to furnish full and complete transcripts of their trials to indigents when exerpted versions or some other adequate substitute is available, if a transcript is necessary to adequate review of a conviction, either on appeal or through procedures for postconviction relief, the transcript must be provided to indigent defendants or to others unable to pay.38 This right may not be denied by drawing a felony–misdemeanor distinction or by limiting it to those cases in which confinement is the penalty.39 A defendant’s right to counsel is to be protected as well as the similar right of the defendant with funds.40 The right to counsel on appeal necessarily means the right to effective assistance of counsel.41

But, deciding a point left unresolved in Douglas, the Court held that neither the due process nor the equal protection clause required a State to furnish counsel to a convicted defendant seeking, after he had exhausted his appeals of right, to obtain discretionary review of his case in the State’s higher courts or in the United States Supreme Court. Due process fairness does not re[p.1920]quire that after an appeal has been provided the State must always provide counsel to indigents at every stage. “Unfairness results only if indigents are singled out by the State and denied meaningful access to that system because of their poverty.” That essentially equal protection issue was decided against the defendant in the context of an appellate system in which one appeal could be taken as of right to an intermediate court, with counsel provided if necessary, and in which further appeals might be granted not primarily upon any conclusion about the result below but upon considerations of significant importance.42 Not even death row inmates have a constitutional right to an attorney to prepare a petition for collateral relief in state court.43

This right to legal assistance, especially in the context of the constitutional right to the writ of habeas corpus, means that in the absence of other adequate assistance, as through a functioning public defender system, a State may not deny prisoners legal assistance of another inmate44 and it must make available certain minimal legal materials.45

The Criminal Sentence.—A convicted defendant may not be imprisoned solely because of his indigency. Williams v. Illinois46 held that it was a denial of equal protection for a State to extend the term of imprisonment of a convicted defendant beyond the statutory maximum provided because he was unable to pay the fine which was also levied upon conviction. And Tate v. Short47 held that in situations in which no term of confinement is prescribed for an offense but only a fine, the court may not jail persons who cannot pay the fine, unless it is impossible to develop an alternative, such as installment payments or fines scaled to ability to pay. Willful refusal to pay may, however, be punished by confinement.

Voting.—Treatment of indigency in a civil type of “fundamental interest” analysis came in Harper v. Virginia Board of Elections,48 in which it was held that “a State violates the Equal Protection Clause . . . whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” The Court emphasized both the fundamental interest in the right to vote and the suspect character of wealth classifications. “[W]e must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race . . . are traditionally disfavored.”49

The two factors—classification in effect along wealth lines and adverse effect upon the exercise of the franchise—were tied together in Bullock v. Carter50 in which the setting of high filing fees for certain offices was struck down upon analysis by a stricter standard than the traditional equal protection standard but apparently a somewhat lesser standard than the compelling state interest test. The Court held that the high filing fees were not rationally related to the State’s interest in allowing only serious candidates on the ballot since some serious candidates could not pay the fees while some frivolous candidates could and that the State could not finance the costs of holding the elections from the fees when the voters were thereby deprived of their opportunity to vote for candidates of their preferences.

Extending Bullock, the Court has held it impermissible for a State to deny indigents, and presumably other persons unable to pay filing fees, a place on the ballot for failure to pay filing fees, however reasonable in the abstract the fees may be. A State must provide such persons a reasonable alternative for getting on the ballot.51 Similarly, a sentencing court in revoking probation must consider alternatives to incarceration if the reason for revocation is the inability of the indigent to pay a fine or restitution.52

Access to Courts.—In Boddie v. Connecticut,53 Justice Harlan carried a majority of the Court with him in utilizing a due process analysis to evaluate the constitutionality of a State’s filing fees in divorce actions which a group of welfare assistance recipients attacked as preventing them from obtaining divorces. The Court found that when the State monopolized the avenues to a pacific settlement of a dispute over a fundamental matter such as marriage—only the State could terminate the marital status—then it denied due process by inflexibly imposing fees which kept some persons from using that avenue. Justice Harlan’s opinion averred that a facially neutral law or policy which did in fact deprive an individual of a protected right would be held invalid even though as a general proposition its enforcement served a legitimate governmental interest. The opinion concluded with a cautioning observation that the case was not to be taken as establishing a general right to access to the courts.

The Boddie opinion left unsettled whether a litigant’s interest in judicial access to effect a pacific settlement of some dispute was an interest entitled to some measure of constitutional protection as a value of independent worth or whether a litigant must be seeking to resolve a matter involving a fundamental interest in the only forum in which any resolution was possible. Subsequent decisions established that the latter answer was the choice of the Court. In United States v. Kras,54 the Court held that the imposition of filing fees which blocked the access of an indigent to a discharge of his debts in bankruptcy denied the indigent neither due process nor equal protection. The marital relationship in Boddie was a fundamental interest, the Court said, and upon its dissolution depended associational interests of great importance; however, an interest in the elimination of the burden of debt and in obtaining a new start in life, while important, did not rise to the same constitutional level as marriage. Moreover, a debtor’s access to relief in bankruptcy had not been monopolized by the government to the same degree as dissolution of a marriage; one may, “in theory, and often in actuality,” manage to resolve the issue of his debts by some other means, such as negotiation. While the alternatives in many cases, such as Kras, seem barely likely of successful pursuit, the Court seemed to be suggesting that absolute preclusion was a necessary element before a right of access could be considered.55

Subsequently, on the initial appeal papers and without hearing oral argument, the Court summarily upheld the application to indigents of filing fees that in effect precluded them from appealing decisions of a state administrative agency reducing or terminating public assistance.56

Educational Opportunity.—Making even clearer its approach in de facto wealth classification cases, the Court in San Antonio School District v. Rodriguez57 rebuffed an intensive effort with widespread support in lower court decisions to invalidate the system prevalent in 49 of the 50 States of financing schools primarily out of property taxes, with the consequent effect that the funds available to local school boards within each state were widely divergent. Plaintiffs had sought to bring their case within the strict scrutiny—compelling state interest doctrine of equal protection review by claiming that under the tax system there resulted a de facto wealth classification that was “suspect” or that education was a “fundamental” right and the disparity in educational financing could not therefore be justified. The Court held, however, that there was neither a suspect classification nor a fundamental interest involved, that the system must be judged by the traditional restrained standard, and that the system was rationally related to the State’s interest in protecting and promoting local control of education.58

Important as the result of the case is, the doctrinal implications are far more important. The attempted denomination of wealth as a suspect classification failed on two levels. First, the Court noted that plaintiffs had not identified the “class of dis[p.1924]advantaged ‘poor”’ in such a manner as to further their argument. That is, the Court found that the existence of a class of poor persons, however defined, did not correlate with property–tax–poor districts; neither as an absolute nor as a relative consideration did it appear that tax–poor districts contained greater numbers of poor persons than did property–rich districts, except in random instances. Second, the Court held, there must be an absolute deprivation of some right or interest rather than merely a relative one before the deprivation because of inability to pay will bring into play strict scrutiny. “The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.”59 No such class had been identified here and more importantly no one was being absolutely denied an education; the argument was that it was a lower quality education than that available in other districts. Even assuming that to be the case, however, it did not create a suspect classification.

Education is an important value in our society, the Court agreed, being essential to the effective exercise of freedom of expression and intelligent utilization of the right to vote. But a right to education is not expressly protected by the Constitution, continued the Court, nor should it be implied simply because of its undoubted importance. The quality of education increases the effectiveness of speech or the ability to make informed electoral choice but the judiciary is unable to determine what level of quality would be sufficient. Moreover, the system under attack did not deny educational opportunity to any child, whatever the result in that case might be; it was attacked for providing relative differences in spending and those differences could not be correlated with differences in educational quality.60

Rodriguez clearly promised judicial restraint in evaluating challenges to the provision of governmental benefits when the effect is relatively different because of the wealth of some of the recipients or potential recipients and when the results, what is obtained, vary in relative degrees. Wealth or indigency is not a per se suspect classification but it must be related to some interest that is fundamental, and Rodriguez doctrinally imposed a considerable[p.1925]barrier to the discovery or creation of additional fundamental interests. As the decisions reviewed earlier with respect to marriage and the family reveal, that barrier has not held entirely firm, but within a range of interests, such as education,61 the case remains strongly viable. Relying on Rodriguez and distinguishing Plyler, the Court in Kadrmas v. Dickinson Public Schools62 rejected an indigent student’s equal protection challenge to a state statute permitting school districts to charge a fee for school bus service, in the process rejecting arguments that either “strict” or “heightened” scrutiny is appropriate. Moreover, the Court concluded, there is no constitutional obligation to provide bus transportation, or to provide it for free if it is provided at all.63

Abortion.—Rodriguez furnished the principal analytical basis for the Court’s subsequent decision in Maher v. Roe,64 holding that a State’s refusal to provide public assistance for abortions that were not medically necessary under a program that subsidized all medical expenses otherwise associated with pregnancy and childbirth did not deny to indigent pregnant women equal protection of the laws. As in Rodriguez, it was held that the indigent are not a suspect class.65 Again, as in Rodriguez and in Kras, it was held that when the State has not monopolized the avenues for relief and the burden is only relative rather than absolute, a governmental failure to offer assistance, while funding alternative actions, is not undue governmental interference with a fundamental right.66 Expansion of this area of the law of equal protection seems especially limited.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting[p.1926]the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty–one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty–one years of age in such State.

With the abolition of slavery by the Thirteenth Amendment, the African Americans formerly counted as three–fifths of persons would be fully counted in the apportionment of seats in the House of Representatives, increasing as well the electoral vote, there appeared the prospect that politically the readmitted Southern States would gain the advantage in Congress when combined with Democrats from the North. Inasmuch as the South was adamantly opposed to African American suffrage, all the congressmen would be elected by whites. Many wished to provide for the enfranchisement of the African American and proposals to this effect were voted on in both the House and the Senate, but only a few Northern States permitted African Americans to vote and a series of referenda on the question in Northern States revealed substantial white hostility to the proposal. Therefore, a compromise was worked out, to effect a reduction in the representation of any State which discriminated against males in the franchise.67

No serious effort was ever made in Congress to effectuate Sec. 2, and the only judicial attempt was rebuffed.68 With subsequent constitutional amendments adopted and the utilization of federal coer[p.1927]cive powers to enfranchise persons, the section is little more than an historical curiosity.69

However, in Richardson v. Ramirez,70 the Court relied upon the implied approval of disqualification upon conviction of crime to uphold a state law disqualifying convicted felons for the franchise even after the service of their terms. It declined to assess the state interests involved and to evaluate the necessity of the rule, holding rather that because of Sec. 2 the equal protection clause was simply inapplicable.

Section 3.
No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress may by a vote of two thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obliga[p.1928]tion incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The right to remove disabilities imposed by this section was exercised by Congress at different times on behalf of enumerated individuals.71 In 1872, the disabilities were removed, by a blanket act, from all persons “except Senators and Representatives of the Thirty–sixth and Thirty–seventh Congresses, officers in the judicial, military and naval service of the United States, heads of departments, and foreign ministers of the United States.”72 Twenty–six years later, Congress enacted that “the disability imposed by section 3 . . . incurred heretofore, is hereby removed.”73

Although Sec. 4 “was undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation. . . . ‘[T]he validity of the public debt’. . . [embraces] whatever concerns the integrity of the public obligations,” and applies to government bonds issued after as well as before adoption of the Amendment.74

Generally.—In the aftermath of the Civil War, Congress, in addition to proposing to the States the Thirteenth, Fourteenth, and[p.1929]Fifteenth Amendments, enacted seven statutes designed in a variety of ways to implement the provisions of these Amendments.75 Several of these laws were general civil rights statutes which broadly attacked racial and other discrimination on the part of private individuals and groups as well as by the States, but the Supreme Court declared unconstitutional or rendered ineffective practically all of these laws over the course of several years.76 In the end, Reconstruction was abandoned and with rare exceptions no cases were brought under the remaining statutes until fairly recently.77 Beginning with the Civil Rights Act of 1957, however, Congress generally acted pursuant to its powers under the commerce clause78 until Supreme Court decisions indicated an expansive concept of congressional power under the Civil War Amendments,79 which culminated in broad provisions against private interference with civil rights in the 1968 legislation.80 The story of these years is largely an account of the “state action” doctrine in terms of its limitation on congressional powers;81 lately, it is the still–unfolding history of the lessening of the doctrine combined with a judicial vesting of discretion in Congress to reinterpret the scope and content of the rights guaranteed in these three constitutional amendments.

State Action.—In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress[p.1930]has the discretion to adopt remedial measures, such as authorizing persons being denied their civil rights in state courts to remove their cases to federal courts,82 and to provide criminal83 and civil84 liability for state officials and agents85 or persons associated with them86 who violate protected rights. These statutory measures designed to eliminate discrimination “under color of law”87 present no problems of constitutional foundation, although there may well be other problems of application.88 But the Reconstruction Congresses did not stop with statutory implementation of rights guaranteed against state infringement, moving as well against private interference.

Thus, in the Civil Rights Act of 1875 89 Congress had proscribed private racial discrimination in the admission to and use of inns, public conveyances, theaters, and other places of public amusement. The Civil Rights Cases90 found this enactment to be beyond Congress’ power to enforce the Fourteenth Amendment. It was observed that Sec. 1 was prohibitory only upon the States and did not reach private conduct. Therefore, Congress’ power under Sec. 5 to enforce Sec. 1 by appropriate legislation was held to be similarly limited. “It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of[p.1931]municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment.”91 The holding in this case had already been preceded by United States v. Cruikshank92 and by United States v. Harris93 in which the Federal Government had prosecuted individuals for killing and injuring African Americans. The Amendment did not increase the power of the Federal Government vis–a–vis individuals, the Court held, only with regard to the States themselves.94

Cruikshank did, however, recognize a small category of federal rights which Congress could protect against private deprivation, rights which the Court viewed as deriving particularly from one’s status as a citizen of the United States and which Congress had a general police power to protect.95 These rights included the right to vote in federal elections, general and primary,96 the right to federal protection while in the custody of federal officers,97 and the right to inform federal officials of violations of federal law.98 The right of interstate travel is a basic right derived from the Federal Constitution which Congress may protect.99 In United States v. Williams,100 in the context of state action, the Court divided four–to–four over whether the predecessor of
18 U.S.C. Sec.
241
in its reference to a “right or privilege secured . . . by the Constitution or laws of the United States” encompassed rights guaranteed by the Fourteenth Amendment, or was restricted to those rights “which Congress can beyond doubt constitutionally secure against inter[p.1932]ference by private individuals.” This issue was again reached in United States v. Price101 and United States v. Guest,102 again in the context of state action, in which the Court concluded that the statute included within its scope rights guaranteed by the due process and equal protection clauses.

Inasmuch as both Price and Guest concerned conduct which the Court found implicated with sufficient state action, it did not then have to reach the question of Sec. 241’s constitutionality when applied to private action interfering with rights not the subject of a general police power. But Justice Brennan, responding to what he apparently intepreted as language in the opinion of the Court construing Congress’ power under Sec. 5 of the Fourteenth Amendment to be limited by the state action requirement, appended a lengthy statement, which a majority of the Justices joined, arguing that Congress’ power was broader.103 “Although the Fourteenth Amendment itself . . . ‘speaks to the State or to those acting under the color of its authority,’ legislation protecting rights created by that Amendment, such as the right to equal utilization of state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, Sec. 5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is necessary to its full protection.”104 The Justice throughout the opinion refers to “Fourteenth Amendment rights,” by which he meant rights which, in the words of
18 U.S.C. Sec.
241
, are “secured . . . by the Constitution,” i.e., by the Fourteenth Amendment through prohibitory words addressed only to governmental officers. Thus, the equal protection clause commands that all “public facilities owned or operated by or on behalf of the State,” be available equally to all persons; that ac[p.1933]cess is a right granted by the Constitution, and Sec. 5 is viewed “as a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens.” Within this discretion is the “power to determine that in order adequately to protect the right to equal utilization of state facilities, it is also appropriate to punish other individuals” who would deny such access.105

It is not clear, following changes in Court personnel and in the absence of definitive adjudication, whether this expansion of Congress’ power still commands a majority of the Court.106 If the Court adheres to the expansion, it is not clear what the limits and potentialities of the expansion are, whether it is only with regard to “state facilities” that Congress may reach private interfering conduct, and what “rights” are reasonably and properly encompassed within the concept of “Fourteenth Amendment rights.”

Supplement: [P.
1933, delete last full paragraph of section, and substitute
the following:]

The Court, however, ultimately rejected this expansion of the powers of Congress in United States v. Morrison.55 In Morrison, the Court invalidated a provision of the Violence Against Women Act 56 that established a federal civil remedy for victims of gender–motivated violence. The case involved a university student who brought a civil action against other students who allegedly raped her. The argument was made that there was a pervasive bias against victims of gender–motivated violence in state justice systems, and that the federal remedy would offset and deter this bias. The Court first reaffirmed the state action requirement for legislation passed under the Fourteenth Amendment,57 dismissing the dicta in Guest, and reaffirming the precedents of the Civil Rights Cases and United States v. Harris. The Court also rejected the assertion that the legislation was “corrective” of bias in the courts, as the suits are not directed at the State or any state actor, but rather at the individuals committing the criminal acts.58

Congressional Definition of Fourteenth Amendment Rights.—In the Civil Rights Cases,107 the Court observed that “the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation,” that is, laws to counteract and overrule those state laws which Sec. 1 forbade the States to adopt. And the Court was quite clear that under its responsibilities of judicial re[p.1934]view, it was the body which would determine that a state law was impermissible and that a federal law passed pursuant to Sec. 5 was necessary and proper to enforce Sec. 1.108 But in United States v. Guest,109 Justice Brennan protested that this view “attributes a far too limited objective to the Amendment’s sponsors, that in fact “the primary purpose of the Amendment was to augment the power of Congress, not the judiciary.”

In Katzenbach v. Morgan,110 Justice Brennan, this time speaking for the Court, in effect overrode the limiting view and posited a doctrine by which Congress was to define the substance of what the legislation enacted pursuant to Sec. 5 must be appropriate to. That is, in upholding the constitutionality of a provision of the Voting Rights Act of 1965 111 barring the application of English literacy requirements to a certain class of voters, the Court rejected a state argument “that an exercise of congressional power under Sec. 5 . . . that prohibits the enforcement of a state law can only be sustained if the judicial branch determines that the state law is prohibited by the provisions of the Amendment that Congress sought to enforce.”112 Inasmuch as the Court had previously upheld an English literacy requirement under equal protection challenge,113 acceptance of the argument would have doomed the federal law. But, said Justice Brennan, Congress itself might have questioned the justifications put forward by the State in defense of its law and might have concluded that instead of being supported by acceptable reasons the requirements were unrelated to those justifications and discriminatory in intent and effect. The Court would not evaluate the competing considerations which might have led Congress to its conclusion; since Congress “brought a specially informed legislative competence” to an appraisal of voting requirements, “it was Congress’ prerogative to weigh” the considerations and the Court would sustain the conclusion if “we perceive a basis upon which Congress[p.1935]might predicate a judgment” that the requirements constituted invidious discrimination.114

In dissent, Justice Harlan protested that “[i]n effect the Court reads Sec. 5 of the Fourteenth Amendment as giving Congress the power to define the substantive scope of the Amendment. If that indeed be the true reach of Sec. 5, then I do not see why Congress should not be able as well to exercise its Sec. 5 ‘discretion’ by enacting statutes so as in effect to dilute equal protection and due process decisions of this Court.”115 Justice Brennan rejected this reasoning. “We emphasize that Congress’ power under Sec. 5 is limited to adopting measures to enforce the guarantees of the Amendment; Sec. 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.”116 Congress responded, however, in both fashions. On the one hand, in the 1968 Civil Rights Act it relied on Morgan in expanding federal powers to deal with private violence that is racially motivated, and to some degree in outlawing most private housing discrimination;117 on the other hand, it enacted provisions of law purporting to overrule the Court’s expansion of the self–incrimination and right–to–counsel clauses of the Bill of Rights, expressly invoking Morgan.118

Congress’ power under Morgan returned to the Court’s consideration when several States challenged congressional legislation119 lowering the voting age in all elections to 18 and prescribing residency and absentee voting requirements for the conduct of presidential elections. In upholding the latter provision and in dividing over the former, the Court revealed that Morgan’s vitality was in some considerable doubt, at least with regard to the reach which many observers had previously seen.120 Four Justices accepted Morgan in full,121 while one Justice rejected it totally122 and an[p.1936]other would have limited it to racial cases.123 The other three Justices seemingly restricted Morgan to its alternate rationale in passing on the age reduction provision but the manner in which they dealt with the residency and absentee voting provision afforded Congress some degree of discretion in making substantive decisions about what state action is discriminatory above and beyond the judicial view of the matter.124

More recent decisions read broadly Congress’ power to make determinations that appear to be substantive decisions with respect to constitutional violations.125 Acting under both the Fourteenth and Fifteenth Amendments, Congress has acted to reach state electoral practices that “result” in diluting the voting power of minorities, although the Court apparently requires that it be shown that electoral procedures must have been created or maintained with a discriminatory animus before they may be invalidated under the two Amendments.126 Moreover, movements have been initiated in Congress by opponents of certain of the Court’s decisions, notably the abortion rulings, to utilize Sec. 5 powers to curtail the rights the Court has derived from the due process clause and other provisions of the Constitution.127

Supplement: [P. 1936, add to text following n.127:]

The case of City of Boerne v. Flores,59 however, illustrates that the Court will not always defer to Congress’ determination as to what legislation is appropriate to “enforce” the provisions of the Fourteenth Amendment. In Flores, the Court held that the Religious Freedom Restoration Act,60 which expressly overturned the Court’s narrowing of religious protections under Employment Division v. Smith,61 exceeded congressional power under section 5 of the Fourteenth Amendment. Although the Court allowed that Congress’ power to legislate to deter or remedy constitutional violations may include prohibitions on conduct that is not itself unconstitutional, the Court also held that there must be “a congruence and proportionality” between the means adopted and the injury to be remedied.62 Unlike the pervasive suppression of the African–American vote in the South which led to the passage of the Voting Rights Act, there was no similar history of religious persecution constituting an “egregious predicate” for the far–reaching provision of the Religious Freedom Restoration Act. Also, unlike the Voting Rights Act, the Religious Freedom Restoration Act contained no geographic restrictions or termination dates.63

A reinvigorated Eleventh Amendment jurisprudence has led to a spate of decisions applying the principles the Court set forth in Boerne, as litigants precluded from arguing that a State’s sovereign immunity has been abrogated under Article I congressional powers 64 seek alternative legislative authority in section 5. For instance, in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,65 a bank which had patented a financial method designed to guarantee investors sufficient funds to cover the costs of college tuition sued the State of Florida for administering a similar program, arguing that the State’s sovereign immunity had been abrogated by Congress in exercise of its Fourteenth Amendment enforcement power. The Court, however, held that application of the federal patent law to the States was not properly tailored to remedy or prevent due process violations. The Court noted that Congress had identified no pattern of patent infringement by the States, nor a systematic denial of state remedy for such violations such as would constitute a deprivation of property without due process.66

A similar result was reached regarding the application of the Age Discrimination in Employment Act to state agencies in Kimel v. Florida Board of Regents.67 In determining that the Act did not meet the “congruence and proportionality” test, the Court focused not just on whether state agencies had engaged in age discrimination, but on whether States had engaged in unconstitutional age discrimination. This was a particularly difficult test to meet, as the Court has generally rejected constitutional challenges to age discrimination by States, finding that there is a rational basis for States to use age as a proxy for other qualities, abilities and characteristics.68 Noting the lack of a sufficient legislative record establishing broad and unconstitutional state discrimination based on age, the Court found that the ADEA, as applied to the States, was “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to or designed to prevent unconstitutional behavior.” 69

Footnotes

1
Dunn v. Blumstein,
405 U.S. 330,
334 (1972)
. Inasmuch as the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the privileges and immunities clause, Article IV, Sec. 2, cl. 1.

2
Intrastate travel is protected to the extent that the classification fails to meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three–judge court), aff’d. per curiam,
405 U.S. 1035 (1972)
, with Arlington County Bd. v. Richards,
434 U.S. 5 (1977)
. The same principle applies in the commerce clause cases, in which discrimination may run against in–state as well as out–of–state concerns. Cf. Dean Milk Co. v. City of Madison,
340 U.S. 349 (1951)
.

7
The durational residency provision established by Congress for the District of Columbia was also voided. Id. at 641–42.

8
Id. at 627–33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff’d sub nom. Wyman v. Bowens,
397 U.S. 49 (1970)
, struck down a provision construed so as to bar only persons who came into the State solely to obtain welfare assistance.

9
394U.S. at
633–38
394U.S. at 633–38. Shapiro was reaffirmed in Graham v. Richardson,
403 U.S. 365 (1971)
(striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County,
415 U.S. 250 (1974)
(voiding requirement of one year’s residency in county as condition to indigent’s receiving nonemergency hospitalization or medical care at county’s expense). When Connecticut and New York reinstituted the requirements, pleading a financial emergency as the compelling state interest, they were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff’d per curiam,
404 U.S. 1054 (1972)
; Lopez v. Wyman, Civ. No. 1971–308 (W.D.N.Y. 1971), aff’d per curiam,
404 U.S. 1055 (1972)
. The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen,
404 U.S. 70 (1971)
.

11419 U.S. 393 (1975)
. Justices Marshall and Brennan dissented on the merits. Id. at 418.

12
Id. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which was true in the prior cases as well and there held immaterial), and that possibly the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny.

14
Zobel v. Williams,
457 U.S. 55 (1982)
. Somewhat similar was the Court’s invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney General of New York v. Soto–Lopez,
476 U.S. 898 (1986)
.

15
La Tourette v. McMaster,
248 U.S. 465 (1919)
, upholding a two–year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or other professions have evoked differing responses by lower courts.

16
E.g., McCarthy v. Philadelphia Civil Service Comm’n,
424 U.S. 645 (1976)
(ordinance requiring city employees to be and to remain city residents upheld). See Memorial Hospital v. Maricopa County,
415 U.S. 250,
255 (1974)
. See also Martinez v. Bynum,
461 U.S. 321 (1983)
(bona fide residency requirement for free tuition to public schools).

17
Jones v. Helms,
452 U.S. 412 (1981)
(statute made it a misdemeanor to abandon a dependent child but a felony to commit the offense and then leave the State).

19
Although the Court’s due process decisions have broadly defined a protected liberty interest in marriage and family, no previous case had held marriage to be a fundamental right occasioning strict scrutiny. Id. at 396, 397 (Justice Powell concurring).

20
Id. at 388. Although the passage is not phrased in the usual compelling interest terms, the concurrence and the dissent so viewed it without evoking disagreement from the Court. Id. at 396 (Justice Powell), 403 (Justice Stevens), 407 (Justice Rehnquist). Justices Powell and Stevens would have applied intermediate scrutiny to void the statute, both for its effect on the ability to marry and for its impact upon indigents. Id. at 400, 406 n.10.

21
Id. at 386–87. Chief Justice Burger thought the interference here was “intentional and substantial,” whereas the provision in Jobst was neither. Id. at 391 (concurring).

23
Id. at 54. See also Mathews v. De Castro,
429 U.S. 181 (1976)
(provision giving benefits to a married woman under 62 with dependent children in her care whose husband retires or becomes disabled but denying them to a divorced woman under 62 with dependents represents a rational judgment by Congress with respect to likely dependency of married but not divorced women and does not deny equal protection); Califano v. Boles,
443 U.S. 282 (1979)
(limitation of certain Social Security benefits to widows and divorced wives of wage earners does not deprive mother of illegitimate child who was never married to wage earner of equal protection).

24
See, e.g., Quilloin v. Walcott,
434 U.S. 246 (1978)
(State’s giving to father of legitimate child who is divorced or separated from mother while denying to father of illegitimate child a veto over the adoption of the child by another does not under the circumstances deny equal protection. The circumstances were that the father never exercised custody over the child or shouldered responsibility for his supervision, education, protection, or care, although he had made some support payments and given him presents). Accord, Lehr v. Robertson,
463 U.S. 248 (1983)
.

26351 U.S. 12 (1956)
. The opinion of the court was joined by Justices Black, Douglas, and Clark, and Chief Justice Warren. Justice Frankfurter concurred. Id. at 20. Justices Burton, Minton, Reed, and Harlan dissented. Id. at 26, 29.

27
Id. at 17, 18, 19. Although Justice Black was not explicit, it seems clear that the system was found to violate both the due process and the equal protection clauses. Justice Frankfurter’s concurrence dealt more expressly with the premise of the Black opinion. “It does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal, and that it is not Illinois that is responsible for disparity in material circumstances. Of course, a State need not equalize economic conditions. . . . But when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction were practical opportunity for review not foreclosed.” Id. at 23.

38
Griffin v. Illinois,
351 U.S. 12 (1956)
; Eskridge v. Washington State Bd. of Prison Terms & Paroles,
357 U.S. 214 (1958)
(unconstitutional to condition free transcript upon trial judge’s certification that “justice will thereby be promoted”); Draper v. Washington,
372 U.S. 487 (1963)
(unconstitutional to condition free transcript upon judge’s certification that the allegations of error were not “frivolous”); Lane v. Brown,
372 U.S. 477 (1963)
(unconstitutional to deny free transcript upon determination of public defender that appeal was in vain); Long v. District Court,
385 U.S. 192 (1966)
(indigent prisoner entitled to free transcript of his habeas corpus proceeding for use on appeal of adverse decision therein); Gardner v. California,
393 U.S. 367 (1969)
(on filing of new habeas corpus petition in appellate court upon an adverse nonappealable habeas ruling in a lower court where transcript was needed, one must be provided an indigent prisoner). See also Rinaldi v. Yeager,
384 U.S. 305 (1966)
. For instances in which a transcript was held not to be needed, see Britt v. North Carolina,
404 U.S. 266 (1971)
; United States v. MacCollom,
426 U.S. 317 (1976)
.

40
Douglas v. California,
372 U.S. 353 (1963)
; Swenson v. Bosler,
386 U.S. 258 (1967)
; Anders v. California,
386 U.S. 738 (1967)
; Entsminger v. Iowa,
386 U.S. 748 (1967)
. A rule requiring a court– appointed appellate counsel to file a brief explaining reasons why he concludes that a client’s appeal is frivolous does not violate the client’s right to assistance of counsel on appeal. McCoy v. Court of Appeals,
486 U.S. 429 (1988)
. The right is violated if the court allows counsel to withdraw by merely certifying that the appeal is “meritless” without also filing an Anders brief supporting the certification. Penson v. Ohio,
488 U.S. 75 (1988)
. On the other hand, since there is no constitutional right to counsel for indigent prisoners seeking postconviction collateral relief, there is no requirement that withdrawal be justified in an Anders brief if a state has provided counsel for postconviction proceedings. Pennsylvania v. Finley,
481 U.S. 551 (1987)
(counsel advised the court that there were no arguable bases for collateral relief).

Supplement: [P.
1919, add to n.40 after citation to Penson v.
Ohio:]

But see Smith v. Robbins,
528 U.S. 259 (2000)
(upholding California law providing that appellate counsel may limit his or her role to filing a brief summarizing the case and record and requesting the court to examine record for non– frivolous issues).

42
Ross v. Moffitt,
417 U.S. 600 (1974)
. See also Fuller v. Oregon,
417 U.S. 40 (1974)
(statute providing, under circumscribed conditions, that indigent defendant, who receives state–compensated counsel and other assistance for his defense, who is convicted, and who subsequently becomes able to repay costs, must reimburse State for costs of his defense in no way operates to deny him assistance of counsel or the equal protection of the laws).

43
Murray v. Giarratano,
492 U.S. 1 (1989)
(upholding Virginia’s system under which “unit attorneys” assigned to prisons are available for some advice prior to the filing of a claim, and a personal attorney is assigned if an inmate succeeds in filing a petition with at least one non–frivolous claim).

47401 U.S. 395 (1971)
. The Court has not yet treated a case in which the permissible sentence is “$30 or 30 days” or some similar form where either confinement or a fine will satisfy the State’s penal policy.

48383 U.S. 663,
666 (1966)
. The poll tax required to be paid as a condition of voting was $1.50 annually. Justices Black, Harlan, and Stewart dissented. Id. at 670, 680.

49
Id. at 668. The Court observed that “the right to vote is too precious, too fundamental to be so burdened or conditioned.” Id. at 670.

55
Id. at 443–46. The equal protection argument was rejected by utilizing the traditional standard of review, bankruptcy legislation being placed in the area of economics and social welfare, and the use of fees to create a self–sustaining bankruptcy system being considered to be a rational basis. Dissenting, Justice Stewart argued that Boddie required a different result, denied that absolute preclusion of alternatives was necessary, and would have evaluated the importance of an interest asserted rather than providing that it need be fundamental. Id. at 451. Justice Marshall’s dissent was premised on an asserted constitutional right to be heard in court, a constitutional right of access regardless of the interest involved. Id. at 458. Justices Douglas and Brennan concurred in Justice Stewart’s dissent, as indeed did Justice Marshall.

56
Ortwein v. Schwab,
410 U.S. 656 (1973)
. The division was the same 5–to–4 that prevailed in Kras. See also Lindsey v. Normet,
405 U.S. 56 (1972)
. But cases involving the Boddie principle do continue to arise. Little v. Streater,
452 U.S. 1 (1981)
(in paternity suit that State required complainant to initiate, indigent defendant entitled to have State pay for essential blood grouping test); Lassiter v. Department of Social Services,
452 U.S. 18 (1981)
(recognizing general right of appointed counsel in indigent parents when State seeks to terminate parental status, but using balancing test to determine that right was not present in this case).

Supplement: [P.
1922, add paragraph to text following n.56:]

The continuing vitality of Griffin v. Illinois, however, is seen in the case of M.L.B. v. S.L.J.,51 where the Court considered whether a State seeking to terminate the parental rights of an indigent must pay for the preparation of the transcript required for pursuing an appeal. Unlike in Boddie, the State, Mississippi, had afforded the plaintiff a trial on the merits, and thus the “monopolization” of the avenues of relief alleged in Boddie was not at issue. As in Boddie, however, the Court focused on the substantive due process implications of the state limiting “[c]hoices about marriage, family life, and the upbringing of children,” 52 while also referencing cases establishing a right of equal access to criminal appellate review. Noting that even a petty offender had a right to have the State pay for the transcript needed for an effective appeal,53 and that the forced dissolution of parental rights was “more substantial than mere loss of money,” 54 the Court ordered Mississippi to provide the plaintiff the court records necessary to pursue her appeal.

57411 U.S. 1 (1973)
. The opinion by Justice Powell was concurred in by the Chief Justice and Justices Stewart, Blackmun, and Rehnquist. Justices Douglas, Brennan, White, and Marshall dissented. Id. at 62, 63, 70.

58
Id. at 44–55. Applying the rational justification test, Justice White would have found that the system did not use means rationally related to the end sought to be achieved. Id. at 63.

59
Id. at 20. But see id. at 70, 117–24 (Justices Marshall and Douglas dissenting).

61
Cf. Plyler v. Doe,
457 U.S. 202 (1982)
. The case is also noted for its proposition that there were only two equal protection standards of review, a proposition even the author of the opinion has now abandoned.

62487 U.S. 450 (1988)
. This was a 5–4 decision, with Justice O’Connor’s opinion of the Court being joined by Chief Justice Rehnquist and Justices White, Scalia, and Kennedy, and with Justices Marshall, Brennan, Stevens, and Blackmun dissenting.

63
487U.S. at
462
487U.S. at 462. The plaintiff child nonetheless continued to attend school, so the requirement was reviewed as an additional burden but not a complete obstacle to her education.

66
Id. at 471–74. See also Harris v. McRae, 448 U.S. 297, 322– 23 (1980). Total deprivation was the theme of Boddie and was the basis of concurrences by Justices Stewart and Powell in Zablocki v. Redhail,
434 U.S. 374,
391,
396 (1978)
, in that the State imposed a condition indigents could not meet and made no exception for them. The case also emphasized that Dandridge v. Williams,
397 U.S. 471 (1970)
, imposed a rational basis standard in equal protection challenges to social welfare cases. But see Califano v. Goldfarb,
430 U.S. 199 (1977)
, where the majority rejected the dissent’s argument that this should always be the same.

67
See generally J. James, The Framing of the Fourteenth Amendment (1956).

69
The section did furnish a basis to Justice Harlan to argue that inasmuch as Sec. 2 recognized a privilege to discriminate subject only to the penalty provided, the Court was in error in applying Sec. 1 to questions relating to the franchise. Compare Oregon v. Mitchell,
400 U.S. 112,
152 (1970)
(Justice Harlan concurring and dissenting), with id. at 229, 250 (Justice Brennan concurring and dissenting). The language of the section recognizing 21 as the usual minimum voting age no doubt played some part in the Court’s decision in Oregon v. Mitchell as well. It should also be noted that the provision relating to “Indians not taxed” is apparently obsolete now in light of an Attorney General ruling that all Indians are subject to taxation. 39 Op. Att’y Gen. 518 (1940).

73
Act of June 6, 1898, ch. 389,
30 Stat.
432
. Legislation by Congress providing for removal was necessary to give effect to the prohibition of Sec. 3, and until removed in pursuance of such legislation persons in office before promulgation of the Fourteenth Amendment continued to exercise their functions lawfully. Griffin’s Case, 11 Fed. Cas. 7 (C.C.D.Va. 1869) (No. 5815). Nor were persons who had taken part in the Civil War and had been pardoned by the President before the adoption of this Amendment precluded by this section from again holding office under the United States. 18 Op. Att’y Gen. 149 (1885). On the construction of “engaged in rebellion,” see United States v. Powell, 27 Fed. Cas. 605 (C.C.D.N.C. 1871) (No. 16,079).

77
For cases under
18 U.S.C. §§
241
and 242 in their previous codifications, see United States v. Mosley,
238 U.S. 383 (1915)
; United States v. Gradwell,
243 U.S. 476 (1917)
; United States v. Bathgate,
246 U.S. 220 (1918)
; United States v. Wheeler,
254 U.S. 281 (1920)
. The resurgence of the use of these statutes began with United States v. Classic,
313 U.S. 299 (1941)
, and Screws v. United States,
325 U.S. 91 (1945)
.

78
The 1957 and 1960 Acts primarily concerned voting; the public accommodations provisions of the 1964 Act and the housing provisions of the 1968 Act were premised on the commerce power.

79
United States v. Guest,
383 U.S. 745 (1966)
; Katzenbach v. Morgan,
384 U.S. 641 (1966)
. The development of congressional enforcement powers in these cases was paralleled by a similar expansion of the enforcement powers of Congress with regard to the Thirteenth Amendment, Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968)
, supra, pp. 1554–55, and the Fifteenth Amendment. South Carolina v. Katzenbach,
383 U.S. 301 (1966)
, infra, pp. 1946–50.

88
E.g., the problem of “specific intent” in Screws v. United States,
325 U.S. 91 (1945)
, and Williams v. United States,
341 U.S. 97 (1951)
, and the problem of what “right or privilege” is “secured” to a person by the Constitution and laws of the United States, which divided the Court in United States v. Williams,
341 U.S. 70 (1951)
, and which was resolved in United States v. Price,
383 U.S. 787 (1966)
.

91
109U.S. at
11
109U.S. at 11. Justice Harlan’s dissent reasoned that Congress had the power to protect rights secured by the Fourteenth Amendment against invasion by both state and private action, but also viewed places of public accommodation as serving a quasi–public function which satisfied the state action requirement in any event. Id. at 46–48, 56–57.

95
United States v. Cruikshank,
92 U.S. 542,
552–53,
556 (1876)
. The rights which the Court assumed the United States could protect against private interference were the right to petition Congress for a redress of grievances and the right to vote free of interference on racial grounds in a federal election.

103
Justice Brennan’s opinion, id. at 774, was joined by Chief Justice Warren and Justice Douglas. His statement that “[a] majority of the members of the Court expresses the view today that Sec. 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy,” id. at 782 (emphasis by the Justice), was based upon the language of Justice Clark, joined by Justices Black and Fortas, id. at 761, that inasmuch as Justice Brennan reached the issue the three Justices were also of the view “that there now can be no doubt that the specific language of Sec. 5 empowers the Congress to enact laws punishing all conspiracies—with or without state action—that interfere with Fourteenth Amendment rights.” Id. at 762. In the opinion of the Court, Justice Stewart disclaimed any intention of speaking of Congress’ power under Sec. 5. Id. at 755.

106
The civil statute paralleling the criminal statute held unconstitutional in United States v. Harris,
106 U.S. 629 (1883)
, is
42 U.S.C. Sec.
1985
(3), similarly derived from Sec. 2 of the 1871 Act,
17 Stat.
13
, and it too lacks a “color of law” requirement. This provision was read into it in Collins v. Hardyman,
341 U.S. 651 (1951)
, to avoid what the Court then saw as a substantial constitutional problem. In Griffin v. Breckenridge,
403 U.S. 88 (1971)
, “color of law” was read out of the statute. While it might be “difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons . . . there is nothing inherent in the phrase that requires the action working the deprivation to come from the State.” Id. at 97. What the language actually required, said the unanimous Court, was an “intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class–based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.” Id. at 102. As so construed, the statute was held constitutional as applied in the complaint before the Court on the basis of the Thirteenth Amendment and the right to travel; there was no necessity therefore, to consider Congress’ Sec. 5 powers. Id. at 107.

110384 U.S. 641 (1966)
. Besides the ground of decision discussed here, Morgan also advanced an alternative ground for upholding the statute. That is, Congress might have overridden the state law not because the law itself violated the equal protection clause but because being without the vote meant the class of persons was subject to discriminatory state and local treatment and giving these people the ballot would afford a means of correcting that situation. The statute therefore was an appropriate means to enforce the equal protection clause under “necessary and proper” standards. Id. at 652–653. A similar “necessary and proper” approach underlay South Carolina v. Katzenbach,
383 U.S. 301 (1966)
, under the Fifteenth Amendment’s enforcement clause.

124
The age reduction provision could be sustained “only if Congress has the power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and what state interests are ‘compelling.”’ Id. at 296 (Justices Stewart and Blackmun and Chief Justice Burger). In their view, Congress did not have that power and Morgan did not confer it. But in voting to uphold the residency and absentee provision, the Justices concluded that “Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the privilege of taking up residence in another State” without reaching an independent determination of their own that the requirements did in fact have that effect. Id. at 286.

58
This holding may have broader significance for federal civil rights law. For instance,
42 U.S.C. §
1985(3) (a civil statute paralleling the criminal statute held unconstitutional in United States v. Harris) lacks a “color of law” requirement. Although the requirement was read into it in Collins v. Hardyman,
341 U.S. 651 (1951)
, to avoid constitutional problems, it was read out again in Griffin v. Breckenridge,
403 U.S. 88,
97 (1971)
(while it might be “difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons . . . there is nothing inherent in the phrase that requires the action working the deprivation to come from the State”). What the unanimous Court held in Griffin was that an “intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class– based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 102. As so construed, the statute was held constitutional as applied in the complaint before the Court on the basis of the Thirteenth Amendment and the right to travel; there was no necessity therefore, to consider Congress’ powers under § 5 of the Fourteenth Amendment. Id. at 107.

63
521U.S. at
532–33
521U.S. at 532–33. The Court found that the Religious Freedom Restoration Act was “so far out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id.

64
Seminole Tribe of Florida v. Florida,
517 U.S. 44 (1996)
(Article I powers may not be used to abrogate a State’s Eleventh Amendment immunity, but Fitzpatrick v. Bitzer,
427 U.S. 445 (1976)
, holding that Congress may abrogate Eleventh Amendment immunity in exercise of Fourteenth Amendment enforcement power, remains good law). See discussion pp. 1533–37.

66
527U.S. at
639–46
527U.S. at 639–46. See also College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666 (1999)
(Trademark Remedy Clarification Act amendment to Lanham Act subjecting States to suits for false advertising is not a valid exercise of Fourteenth Amendment power; neither the right to be free from a business competitor’s false advertising nor a more generalized right to be secure in one’s business interests qualifies as a “property” right protected by the Due Process Clause).

67
120S. Ct.
631 (2000). Again, the issue of the Congress’ power under § 5 of the Fourteenth Amendment arose because sovereign immunity prevents private actions against States from being authorized under Article I powers such as the Commerce Clause.